In the Interest of B.W., Z.W., T.W., and W.W., Minor Children ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-1810
Filed February 16, 2022
IN THE INTEREST OF B.W., Z.W., T.W., and W.W.,
Minor Children,
B.W., Father,
Appellant,
C.W., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Carrie Bryner, District
Associate Judge.
A father and a mother appeal the termination of their parental rights.
AFFIRMED ON BOTH APPEALS.
Kylie Liu of the Office of the State Public Defender, Cedar Rapids, for
appellant father.
Morgan Wilson of Iowa Legal Aid, Cedar Rapids, for appellant mother.
Thomas J. Miller, Attorney General, and Tabitha J. Gardner, Assistant
Attorney General, for appellee State.
Robin Licht, Cedar Rapids, attorney and guardian ad litem for minor
children.
Considered by Tabor, P.J., and Greer and Ahlers, JJ.
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TABOR, Presiding Judge.
A mother, Crystal, and a father, Bruce, each appeal the termination of their
parental rights to four sons: fifteen-year-old B.W., twelve-year-old Z.W., nine-year-
old T.W., and six-year-old W.W. In her petition on appeal, Crystal argues
termination is not in the children’s best interests and asks for a guardianship
instead. In his petition, Bruce contends the Iowa Department of Human Services
(DHS) didn’t make reasonable efforts toward reunification when it failed to address
his transportation concerns. Finding the parents’ claims do not merit reversal, we
affirm the juvenile court’s termination order.1
I. Facts and Prior Proceedings
These proceedings began in January 2020, when police arrested Bruce for
possessing methamphetamine.2 Soon after, the juvenile court determined the
children were in need of assistance (CINA). For a few months, the children and
Crystal moved in with Crystal’s mother. But after Crystal admitted
methamphetamine use, the court removed the children from parental custody and
1 Termination reviews are de novo. In re M.D., 921 N.W.2d 229, 232 (Iowa 2018).
Although we give weight to the juvenile court’s fact findings, they do not bind us.
Id. Our review follows a three-step process. In re D.W., 791 N.W.2d 703, 706
(Iowa 2010); see Iowa Code § 232.116 (2021). First, we look for a termination
ground. Iowa Code § 232.116(1). Then we consider the children’s best interests.
Id. § 232.116(2). And, finally, we examine factors weighing against termination.
Id. § 232.116(3). Because Bruce and Crystal contest different stages of the
process, we examine each appeal separately. See In re J.P., No. 19-1633, 2020
WL 110425, at *1 (Iowa Ct. App. Jan. 9, 2020) (“[I]f a parent does not challenge a
step in our analysis, we need not address it.”).
2 The DHS performed a child abuse assessment in 2016 for allegations of physical
abuse by Bruce, but it was not confirmed. The DHS performed another
assessment in 2019 based on a report that the parents were using
methamphetamine while caring for the children. It was also not confirmed.
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placed them with their maternal aunt and her husband. They have remained in
that home since May 2020.
For the next year and a half, the DHS offered the parents a plethora of
services aimed at reunification. But they failed to fully engage. Bruce twice
enrolled in out-patient treatment programs for his substance abuse, but was
discharged both times for nonattendance. And, as of the termination hearing, he
was not engaged in any treatment, substance abuse or otherwise.
Crystal followed a similar path. Like Bruce, she enrolled in two out-patient
treatment programs. She also participated in group therapy. But, again like Bruce,
her nonattendance stalled progress. After being discharged from the second out-
patient program, she was referred to a detox and residential treatment center. But
she never followed through on that referral. The juvenile court believed Crystal’s
attendance issues were an attempt to “shop” for the least restrictive treatment plan.
Given their non-engagement with treatment, neither parent made significant
strides toward battling their methamphetamine addictions. Adding to their lack of
progress, both parents missed most of their drug testing appointments—Bruce
completed about forty percent of offered tests, faring slightly better than Crystal’s
thirty-three percent. And of the tests actually taken, Crystal only had two come
back negative, edging out Bruce’s one. Positive and missing tests aside, both
admitted to abusing methamphetamine during the CINA proceedings.
Bruce also had a few run-ins with the law. After an operating-while-
intoxicated conviction, his driver’s license was barred. Despite that bar, he drove
illegally, attracting police attention. And, in January 2021, he served two days in
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jail for a probation violation. Bruce blamed his barred license for his difficulties in
finding employment, accessing treatment services, and reporting to drug testing.
On a positive note, both parents had more success with attendance at
visitations. At first the interactions were at the grandmother’s house. But the
service provider grew concerned that the boys were overly rambunctious there,
recalling T.W. once ran around with a hand saw, one of the tools that the boys
referred to as “weaponry.” In the interests of safety, the provider moved the visits
to the Family First Services (FFS) office. To an extent, the change of scenery
helped. But the parents continued to have trouble supervising the children and
redirecting their energies. That said, the parents regularly attended the twice-
weekly two-hour visits, though Bruce was often late, according to the provider. But
on balance the parents’ progress never warranted unsupervised visits, and no trial
home placements ever happened.
Believing reunification was unachievable in the foreseeable future, the State
petitioned for termination in May 2021. The juvenile court held a trial in August
and terminated the parental rights in November. The parents separately appeal.
II. Analysis
A. Bruce’s Appeal
1. Jurisdiction
At the start, we must decide if we have jurisdiction to consider Bruce’s
challenge. Under our rules of appellate procedure, a notice of appeal in a
termination case “must be filed within 15 days after the filing of the order or
judgment.” Iowa R. App. P. 6.101(1)(a). In the next step of this expedited process,
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a petition on appeal must be filed “within 15 days after filing the notice of appeal.”
Iowa R. App. P. 6.201(1)(b).
The juvenile court filed its termination order on November 8. But Bruce’s
attorney did not file a notice of appeal until November 26—eighteen days later.
Noting the apparent untimeliness, our supreme court ordered an explanation for
the late filing. In that jurisdictional statement, the father’s counsel insisted Bruce’s
appeal was timely, arguing the “computing time” under Iowa Code section 4.1(34)
ran from November 9 because the statute states: “the first day shall be excluded
and the last day included.” Counsel then calculated November 24, as the deadline
and noted that day had been added as a state holiday in 2021. We need not
address the holiday issue because counsel misread the statute. Excluding the first
day means starting the count from the date of the order, not the day after it. See,
e.g., Zick v. Haugh, 165 N.W.2d 836, 837 (Iowa 1969) (holding June 14 is not
within thirty days from the entry of the judgment on May 14). The notice of appeal
was due November 23. Bruce’s notice was three days late.
In the alternative, Bruce seeks a delayed appeal. See In re W.M., 957
N.W.2d 305, 316 (Iowa 2021) (allowing delayed appeal when parent clearly
intended to appeal and delay in filing notice was “no more than negligible”); see
also In re A.B., 957 N.W.2d 280, 293 (Iowa 2021) (applying same standard to
petition on appeal). His attorney argues that Bruce showed his intent to appeal by
signing the notice and any failure to timely perfect the appeal was counsel’s
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mistake. He also argues any delay was “negligible” and “will have no impact on
timing throughout the life of this appeal.”
In its response, the State argues both Bruce’s notice of appeal and his
petition on appeal were untimely. The State also cites a case from our court
holding that the parent must show “some extenuating circumstance” for the delay.
See In re C.R., No. 21-0630, 2021 WL 4303584, at *1 (Iowa Ct. App. Sept. 22,
2021) abrogated by In re W.T., 967 N.W.2d 315 (Iowa 2021). But our supreme
court has since clarified that “extenuating circumstances” are not required. W.T.,
967 N.W.2d at 322. A delayed appeal is allowed if counsel can show (1) the parent
clearly intended to appeal; (2) failure to timely perfect the appeal was outside of
the parent’s control; and (3) the delay was “no more than negligible.” Id.
So we are left with the question whether a three-day delay counts as “no
more than negligible.” See id. at 326 (Waterman, J., dissenting) (contemplating
future litigation to figure out where to draw the line in cases without extenuating
circumstances). In the three delayed appeals granted by our supreme court, the
measure of negligible was a day or two. See, e.g., id. at 318 (one day); A.B., 957
N.W.2d at 293 (two days); W.M., 957 N.W.2d at 316–17 (two days). In an
unpublished case, our court found a delay of three days was “‘no more than
negligible’ and did not delay the appeal process.” In re C.B., No. 21-0814, 2021
WL 4303660, at *3 (Iowa Ct. App. Sept. 22, 2021). Given the expedited nature of
child-welfare appeals, three days may be pushing the limit of what can be
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considered negligible.3 But we opt to follow the course we took in C.B. and grant
the delayed appeal.
2. Reasonable Efforts
The juvenile court terminated parental rights under section 232.116,
paragraph (f). Under that paragraph, a court may terminate rights if:
(1) The child is four years of age or older.
(2) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
(3) The child has been removed from the physical custody of
the child’s parents for at least twelve of the last eighteen months, or
for the last twelve consecutive months and any trial period at home
has been less than thirty days.
(4) There is clear and convincing evidence that at the present
time the child cannot be returned to the custody of the child’s parents
as provided in section 232.102.
Iowa Code § 232.116(1)(f).
Bruce does not directly contest the grounds for termination. Instead, he
asserts that the DHS did not make reasonable efforts toward reunification. See In
re C.B., 611 N.W.2d 489, 493 (Iowa 2000) (“[T]he reasonable efforts requirement
is not viewed as a strict substantive requirement of termination. Instead, [it] . . .
impacts the burden of proving the elements of termination which require
reunification efforts.”).
He argues that a lack of transportation proved his undoing. He believes
that “but for [his] transportation issues, he would have been able to take advantage
of substance abuse treatment, which he may have successfully completed, and
subsequently show his progress and success through consistent drug testing.”
3In common parlance, “negligible” means “not significant or important enough to
be worth considering, trifling.” Negligible, American Heritage Dictionary (2d Coll.
ed. 1982).
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When weighing reasonable efforts, a parent’s request for more assistance
is key. See In re L.M., 904 N.W.2d 835, 839–40 (Iowa 2017) (“[P]arents have a
responsibility to object when they claim the nature or extent of services is
inadequate.”); In re O.T., No. 18-0837, 2018 WL 3302167, at *2 (Iowa Ct. App.
July 5, 2018) (“The failure to request different or additional . . . services in the
juvenile court precludes [the parent’s] challenge to the services on appeal.”). So
first, did Bruce request additional services?
Bruce broached the transportation issue in March 2020 during a FFS
meeting. In that interaction, the father contended his driving restriction contributed
to his inability to hold down a job. About a year later, he tied the transportation
concerns to drug testing and substance abuse treatment. In February 2021, he
“reported at court that [his transportation] issues were barrier to drug testing, detox
and other substance abuse treatments.” And in March, June, and July FFS
meetings, he reiterated this concern, noting that not having a ride was an obstacle
to testing.
Beyond informing the DHS, he made his concerns known to the court. In a
February order, the court found that “the Department of Human Services has made
reasonable efforts . . . . Further, no party has requested additional services or
assistance, except for the parents’ request for assistance with transportation.”
(Emphasis added.) Given that order, we’re satisfied that Bruce asked for help with
transportation.
In response to Bruce’s reasonable-efforts argument, the State argues that
his transportation struggles were overblown or disingenuous. In support of this
position, it points to Crystal’s willingness to drive him. But we don’t think her
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generosity negates Bruce’s barrier. And this family’s case plan was demanding,
requiring each parent to attend (1) twice weekly visitations, (2) regular drug testing,
and (3) intensive out-patient substance-abuse treatments. It wasn’t feasible for
Crystal to keep up with Bruce’s schedule on top of her own.
Equally unpersuasive, the State highlights several driving-while-barred
charges as proof that Bruce’s transportation concerns were selective. True, the
charges reflect his willingness to ignore the driving prohibition. But we won’t fault
Bruce for not breaking the law more consistently.
The State also asserts that he “was given options for transportation that he
chose not to utilize.” It relies on a July 2021 FFS report which read: “Bruce stated
to the [FFS] worker that he has not been testing consistently at all due to not having
a ride to be tested. The [FFS] worker provided Bruce a few recommendations for
rides but he did not seem very interested with any of the options.” But this excerpt
doesn’t explain what those options were. And the State did not flesh out possible
accommodations at the termination hearing. Under cross examination, the case
worker acknowledged that the DHS had not pursued other transportation options.
Q. At many of the meetings transportation issues have been
discussed and there is no available bus to help with that. Were any
other solutions or anything like that discussed as a way to help [the
father] either have to choose between driving himself and not
following the case plan? A. At the Foster Care Review Board, I
believe Horizons was recommended like that we try and see if that
was an option.
Q. And did you? A. I did not.
On this record, we cannot find that Bruce failed to fully avail himself of
transportation services offered by the DHS. Cf. In re A.C., No. 20-0964, 2020 WL
7021569, at *2 (Iowa Ct. App. Nov. 30, 2020) (“Workers provided rides to the father
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for visitations, appointments, and drug testing. And DHS provided the father with
gas cards at times.”).
But all that said, the reasonable efforts requirement does not mean the
State must “search for unavailable services.” In re C.H., 652 N.W.2d 144, 147
(Iowa 2002). While Bruce used his lack of transportation as an excuse for failing
to comply with drug-testing and treatment, he did not identify what services would
have helped him fulfill the case plan. See In re L.M.W., 518 N.W.2d 804, 807 (Iowa
Ct. App. 1994) (discussing parents’ responsibility to request “specific services”).
For example, he did not ask for financial assistance with public transportation. Nor
did he suggest drug-testing or treatment venues more accessible from his
residence. See In re A.J., No. 21-0509, 2021 WL 3076304, at *3 (Iowa Ct. App.
July 21, 2021) (rejecting reasonable-efforts claim when father with unreliable
transportation “did not request any other actions to facilitate his drug testing”). And
to a large extent, Bruce’s transportation woes were self-inflicted, as his criminal
actions led to the driving bar. See id. at *2.
Finally, we question Bruce’s speculation that “but for” his transportation
issues he may have successfully completed substance abuse treatment and
shown success in drug testing. Early in the CINA case, Bruce completed a
substance-abuse evaluation, but disagreed with its recommendation for intensive
outpatient treatment. As the juvenile court observed, “Bruce has failed to
acknowledge the severity of his substance abuse and has not taken his treatment
seriously.” The record shows Bruce’s denial of the need for substance-abuse
services, and not the difficulty in accessing those services, has been the biggest
obstacle to becoming a safe parent.
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Under these circumstances, we find the State offered clear and convincing
evidence to support termination, including proof that it made reasonable efforts to
ensure that the children could be safely returned to Bruce’s care. See C.B., 611
N.W.2d at 493. So we affirm the termination of his parental rights.
B. Crystal’s Appeal
Crystal concedes the ground for termination. Instead, she takes aim at the
second step, arguing termination was not in the children’s best interests. In
support, she points to her close bond with her sons and their “behavioral issues”
that have manifested in their current placement.4 In the alternative, she asserts
that guardianship, rather than termination, is the more appropriate course of action.
Statutory factors guide the best-interests analysis. We give primary
consideration to the children’s safety, to the best placement for furthering their
long-term nurturing and growth, and to their physical, mental, and emotional
condition and needs. Iowa Code § 232.116(2).
These principles in mind, we believe termination is in the children’s best
interests. True, Crystal and the boys have a genuine, close connection. Through
these proceedings, she’s remained dedicated to her children. She has seldom
missed a visitation, bringing snacks and activities to twice-weekly sessions. And
we don’t discount these efforts.
4 Although framed as a best-interests argument, Crystal’s reference to the close
bond with her children implicates section 232.116(3)(c). But that exception is
permissive, not mandatory; its application is within the court’s discretion. See In
re A.M., 843 N.W.2d 100, 113 (Iowa 2014). And the close-bond exception requires
Crystal to offer clear and convincing evidence that termination would be
detrimental to the children. See W.M., 957 N.W.2d at 315. That evidence is
missing here.
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On the other hand, her commitment to her treatment, both substance abuse
and mental health, is not there. Unlike the visitations, she’s missed about two-
thirds of her drug tests and has been discharged from professional treatment
services for lack of attendance. Because she continues to battle her
methamphetamine demons, we find that she is not in a place to tend to her
children’s immediate or long-term needs. See Iowa Code § 232.116(2) (giving
“primary consideration to the children’s safety”); In re W.S., No. 21-0264, 2021 WL
2453046, at *2 (Iowa Ct. App. June 16, 2021) (“The parents’ continued
methamphetamine use creates a safety risk . . . .”).
And others agree. First, the children are aware of their mother’s situation
and are happy in their placement. B.W., the oldest, “knows he can’t go home
because his parents aren’t doing what they need to do” and “knows his parents
are using.” And the younger boys have asked to live with their aunt “forever.”
Second, the children’s grandmother testified that Crystal wasn’t in a position to
care for them. Third, Crystal agreed, acknowledging that she was not ready to
take the children back and conceding that their current placement is a good one.
True, the children have had “behavioral issues” as of late, including running away,
misbehavior at school, and an uptick in mental-health needs. But the record
suggests these issues relate to a change at their current placement, their aunt
having recently divorced her husband. Adding to that disruption by separating the
boys from their aunt would likely worsen their behaviors.
Next, Crystal argues that guardianship—not termination—was the better
option. She notes that while the children are in their aunt’s custody, the juvenile
court can supervise Crystal’s progress. But “a guardianship is not a legally
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preferable alternative to termination.” See W.M., 957 N.W.2d at 315. And a
guardianship, unlike termination, doesn’t promote stability and permanency. See
In re S.R., No. 20-0210, 2020 WL 2065953, at *1 (Iowa Ct. App. Apr. 29, 2020).
Given Crystal’s lack of progress toward reunification over the last year and a half,
we believe termination of her parental rights better serves the children’s need for
a stable, permanent home.
AFFIRMED ON BOTH APPEALS.
Greer, J., concurs; Ahlers, J., concurs specially.
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AHLERS, Judge (specially concurring).
I agree with the entire majority opinion, with one exception relating to the
jurisdictional issue surrounding the father’s request for a delayed appeal. On that
issue, I agree with the outcome reached by the majority, but for a different reason.
As the majority points out, the three requirements for allowing a delayed
appeal are: (1) the parent clearly intended to appeal; (2) failure to timely perfect
the appeal was outside the parent’s control; and (3) the delay was “no more than
negligible.” In re W.T., 967 N.W.2d 315, 322 (Iowa 2021). Like the majority, I find
the father met the first two requirements and his notice of appeal was filed three
days late. So the dispositive question on this issue is whether this delay was no
more than negligible.
As I read its opinion, the majority concludes that a three-day delay is no
more than negligible. With this as a general point, I disagree. The expedited
appeal deadline in these types of cases is fifteen days. Iowa R. App. P.
6.101(1)(a). The deadline is expedited for a reason—“to bring the termination of
parental rights proceeding to a more timely resolution” and “reduc[e] the time all
must wait in litigation limbo until their case is finally resolved.” In re R.K., 649
N.W.2d 18, 21 (Iowa Ct. App. 2002). Allowing three extra days extends the fifteen-
day deadline by twenty percent. Keeping in mind that negligible means “so small
or unimportant or of so little consequence as to warrant little or no attention” or
“trifling,”5 I cannot conclude a twenty percent extension of the appeal deadline is
“no more than negligible.” No other scenario comes to mind in which the mark can
5 Negligible, Merriam-Webster, https://www.merriam-webster.com/dictionary/
negligible (last visited February 11, 2022).
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be missed by twenty percent and one would conclude the miss was no more than
negligible. To the extent the majority holds that a three-day delay in general meets
the “no more than negligible” requirement, I respectfully disagree.
So, why is this a special concurrence rather than a dissent? Because the
unique circumstances here make the delay negligible. The father’s appeal
deadline was Tuesday, November 23, 2021. The father filed his notice of appeal
on Friday, November 26. In my view, in an ordinary week, this would be more than
a negligible delay and would be too late. But the week in question was
Thanksgiving week, and a special Thanksgiving week to boot. In a normal
Thanksgiving week, Thursday and Friday are holidays on which the judicial
branch’s clerk’s offices are closed. In 2021, Governor Kim Reynolds declared a
special additional holiday on Wednesday, November 24. So, in 2021, the clerk’s
offices closed at the end of the business day on Tuesday, November 23, and did
not reopen until Monday, November 29. If the father had filed his notice of appeal
after business hours but before midnight on November 23, it would have been
timely. See Iowa Ct. R. 16.309(1)(c) (“A document is timely filed if it is filed before
midnight on the date the filing is due.”). Given that the clerk’s office was not open
to process the father’s filing starting when the office closed on November 23 and
ending when it reopened on November 29, it made no practical difference whether
it was timely filed on November 23 after the clerk’s office closed or was untimely
filed any time thereafter until the clerk’s office reopened on November 29. Only
because the father’s filing was made during this window of time can I conclude that
the three-day delay here was of so little consequence that it was no more than
negligible.
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I join in the majority opinion, with the exception noted relating to the reason
to allow the father’s delayed appeal.